*1 Hagan Hagan. v. alleged present 1. action is not case where Justice. Head, awarded enable the wife to contest (74 785), Carnes, E. 1 S. v. Ga. within rule stated 138 Carnes (102 829), 171 Legg Legg, v. Ga. v. E. 150 133 LaFitte Ga. (155 present case the 521), S. E. and similar cases. judgment a final attachment for not issue until dismissing affirming court of the trial court jurisdiction. for wife’s cross-action want void 2. A of a court without may any any such and in where be attacked at time Parish, attempted Code, 110-701,110-709; v. §§ Parish to be enforced. (57 784); Crow, 653; S. E. v. 458 32 Franklin Ga. (101 Foster, 183); 207 Schulze, Foster Schulze 2d, E.S. temporary alimony by 3. An award of cause, parties, any made the basis can not or void for other be contempt. Baker, proceeding a valid Allen v. 483) 2d, ; Strickland, Strickland Swindell, Swindell v. adjudging defendant 4. The trial court erred except Wyatt
Judgment concur, All the reversed. Justices participating. Atkinson, PJ., JJ., dissent, who 1952. 17854. Submitted May No. 1952 Decided Wilson, Frank in error. Thomas A. Jacobs G. plaintiff Bell, Bell & contra. *2 purposes granting Justice, dissenting. One
temporary alimony husband’s action to wife the a expenses paying a financially is to assist her in divorce litigation. Code, Temporary alimony, when once 30-202. § by order, con- granted, unless terminated the court the just long pends. tinues as as “The cause is the cause superior as it is whether in the court or litigated, Holleman, 676, 677; court.” Holleman v. Powell v. 191). An for tem- order porary alimony void, though pleads that the is not over him. LaFitte has no instant case the husband a divorce in Bibb filed suit for 1948, 20, Court on of deser- alleg- 20, 1950, cross-petition, tion. On October ing and filing a reconciliation after the husband’s suit alimony subsequent separation, prayed a a divorce and wife permanent. February 13, 1951, On cross-petition, alleging her a amended the husband was Glynn County. 9, award- 1951, resident of On March temporary alimony fees. On the ed cross-petition, husband filed a demurrer to same asserting cross-petition its face that venue shows on day was not in Bibb and also he filed on same special bar, alleging plea filing that after the of the divorce was a reconciliation, suit there resided county. of that resident Glynn County, he and that demurrer a motion to dismiss The wife filed April denied. On jurisdiction. This motion to the setting cross-action, up wife amended her and cohabitation after the reconciliation to abide the husband failed conditional, and that suit were an recit April conditions. court entered On cross- dismissed the ing that was without Hagan v. Ha court. which order filed gan, (66 E. 2d, Thereafter on defended rule for The husband 1951, when April 26, ceased as of jurisdiction and dismissed trial court held that it was without the husband in trial court held the cross-action. The April 1951, and the alimony appeal. this court date of the involved in invalidity was not of. *3 not con case it here that decision is before, when was simply there a case for trolling. question this: Was now is time the order pending in the lower court between the that striking date entered the wife’s cross-action support continu this so to order was period? “A alimony during ance of order for parties of thereto not be treated as can so as either Supreme Court; reviewed right to have the same had reviewed, judgment is and if is not final until their it is so Twilley Twilley, made the of trial court.” temporary ali So, where awarded, subsequently prayer mony been has for a trial permanent alimony denied and her motion new being alimony, further order as to overruled, there no obligated husband is of the verdict and date the final af of of Aud, Aud firmance in this court. (1). supra, Powell case, pending
In the instant the husband’s suit for divorce was granting temporary alimony entered, at the time the order pending and it at the time reviewed in 208 Ga. orders entered, judg- were 315, supra, and was at the time merit of affirmance was entered. In the court had that jurisdiction parties over the action. the cause of suit This was not abated, nor in dismissed, effect because the resumed cohabitation. Harn v. Harn, 155 383). The fact husband, suit, removed Glynn residence Superior not cause the Court of Bibb to lose action. Brewer v. Brewer, (3) (55 E. 2d, case, last-cited petition for divorce and in Fulton Court, ground of cruel treatment. Subsequently, she amended petition by alleging that she and the defendant, (italics who is “now a resident Florida” mine), resumed cohabitation on condition that repeat would specified acts, promise he failed to comply with. The petition defendant demurred to the petition showed on its face that the court did not have subject-matter parties. or the This demurrer was overruled. exception There ruling, was no to this but to order granting alimony the husband filed a bill of exceptions, assigning error on the the court could lawfully enter an order for alimony or attorney’s fees because the dispute evidence showed without hus band had legal established his residence in Florida. This held that there was no awarding error in alimony and fees.
The husband’s action in the instant case could not be said to be void ab initio, as in Jones, Jones v.
271), where there was total want of over the parties as beginning suit. view of the husband’s *4 pending action for under divorce, no circumstances could it be said the order temporary alimony was void ab initio. The supersedeas obtained a of the order dismissing her answer and cross-action, the husband was obli- gated payments to continue alimony until the judgment superseded was affirmed this court. judge The trial correctly held the husband in contempt ali- mony during period, should be affirmed.
I am say authorized that Wyatt, J., joins in this dissent.